Opinion
B319446
05-02-2023
AEMV, LLC, Plaintiff and Appellant, v. PACIFIC BELL TELEPHONE COMPANY, INC., Defendant and Respondent.
Rastegar Law Group, Farzad Rastegar and Thomas S. Campbell for Plaintiff and Appellant. Mayer Brown, John Nadolenco, Andrew J. Demko and Rose A. Lyn for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 19STCV28460, David Sotelo, Judge. Affirmed.
Rastegar Law Group, Farzad Rastegar and Thomas S. Campbell for Plaintiff and Appellant.
Mayer Brown, John Nadolenco, Andrew J. Demko and Rose A. Lyn for Defendant and Respondent.
ACTING P. J. ASHMANN-GERST
Plaintiff and appellant AEMV, LLC (AEMV) appeals from a judgment entered in favor of defendant and respondent Pacific Bell Telephone Company, Inc. (AT&T) after the trial court granted AT&T's motion for summary judgment. Because the undisputed evidence establishes that AEMV's inverse condemnation cause of action was barred by the applicable statute of limitations, we affirm.
BACKGROUND
I. Facts
This case concerns real property located on South La Cienega Boulevard in Culver City (the property). In 1894, Otmar Bauer deeded the property to the County of Los Angeles "'in fee simple for road purposes.'" The County of Los Angeles then opened the property for road use as Adams Street. In 1922, Culver City annexed the property and assumed jurisdiction over it.
According to AT&T records, AT&T placed a 456-foot, 8-duct conduit under the property in 1925. In 1958, AT&T placed a 398-foot, 14-duct conduit under the property. Both conduits remain in place and provide internet, telephone, and alarm services to customers.
In 1962, Culver City vacated the property through the passage of Ordinance No. CS-443, which expressly reserved easements for telephone and telegraph lines. Ordinance No. CS-443 provides, in pertinent part: "[T]he vacation and abandonment of Adams Street . . . is made subject to the reservation of certain permanent easements and rights of way and the City Council does hereby reserve said permanent easements and rights of way at any time or from time to time as follows: [¶] . . . For the purpose of constructing, maintaining, operating, replacing, removing, and renewing . . . appurtenant structures in, upon, over, and across the said street or part thereof, proposed to be vacated, and pursuant to any existing franchises or renewals thereof and otherwise construct, maintain, operate, replace, remove, renew, and enlarge lines of pipe conduits, cables, wires, poles, and other convenient structures, equipment and fixtures for the operation of . . . telegraphic and telephone lines ...." Ordinance No. CS-443 was recorded in
Los Angeles County on December 24, 1962.
AEMV purchased the property from the Stanton Family Trust in 2013. AEMV was informed during escrow that the property had a utility easement, and the deeds of trust for the property, recorded in September 2013, specifically reference Ordinance No. CS-443 as part of the legal description of the property.
In business dealings, Reza Ghavami (Ghavami) acted on behalf of Ehsan Vahidi (Vahidi), AEMV's principal. On August 7, 2014, AT&T representative Brian Hamel (Hamel) sent Ghavami an e-mail concerning the "property and an existing 'telegraphic and telephone lines' easement." Attached to Hamel's e-mail was an assessor's map of the property with the boundaries of AT&T's easement outlined in red and Ordinance No. CS-443 and information regarding the ordinance's recording identified in blue. Hamel also forwarded an e-mail from AT&T's right-of-way engineer mentioning AT&T's "facilities on the southeast corner of Washington and La Cienega as one 8-duct conduit run and one 14-duct conduit run."
On or around April 1, 2015, AT&T learned that AEMV's lessee, California Rent-a-Car, Inc., had damaged AT&T's conduits.
Vahidi, AEMV's principal, is also a principal of California Rent-a-Car, Inc.
II. Procedural History
A. Complaint and first amended complaint
AEMV commenced this action on August 9, 2019, by filing a complaint against AT&T asserting causes of action for trespass and nuisance. Three months later, AEMV filed a first amended complaint. Both the complaint and first amended complaint alleged that "[i]n or around August of 2014, [AEMV] discovered that two underground telecommunications lines"-owned by AT&T-"were embedded underground to the [p]roperty . . . and intersect[ed] with [AEMV]'s rights in fee simple to the [p]roperty."
B. AT&T's first motion for summary judgment
In December 2020, AT&T moved for summary judgment, arguing, inter alia, that AEMV's trespass and nuisance causes of action were barred by the applicable three-year statute of limitations. AT&T filed an amended motion for summary judgment in April 2021.
C. AEMV's motion to amend
In June 2021, a few days after AEMV filed its opposition to AT&T's motion for summary judgment, AEMV moved for leave to file a second amended complaint. The proposed second amended complaint added causes of action for inverse condemnation and declaratory relief and purported "to correct an error with respect to the date the taking was first discovered and the extent of the taking." In place of the allegation that AEMV had discovered
AT&T's underground telecommunications lines in or around August 2014, the proposed second amended complaint alleged that the discovery took place "[o]n or around April 1, 2015."
AT&T opposed AEMV's motion to amend, arguing that the sham pleading doctrine barred the proposed amendment.
"Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment. [Citations.]" (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.)
On August 20, 2021, the trial court granted AEMV leave to file a second amended complaint adding the two new causes of action, but the court denied leave to amend "the date of discovery." The court found that the proposed amended date was "a clear attempt to sidestep the statute of limitations issue."
D. Operative second amended complaint
AEMV filed the operative second amended complaint a few days later. Like the earlier complaints, the second amended complaint alleged that "[i]n or around August of 2014, [AEMV] discovered that two underground telecommunications lines were embedded underground to the [p]roperty . . . and intersect[ed] with [AEMV]'s rights in fee simple to the [p]roperty."
E. AT&T's second motion for summary judgment
In December 2021, AT&T filed a motion for summary judgment or, in the alternative, summary adjudication, as to the second amended complaint, arguing that each cause of action was barred by its statute of limitations. AEMV opposed the motion.
AT&T withdrew its summary judgment motion pertaining to the superseded first amended complaint.
F. Order granting summary judgment
Following a hearing, the trial court granted AT&T's motion for summary judgment on February 17, 2022.
The trial court concluded that "no triable issue of material fact exists as to any of AEMV's claims against AT&T because it filed its [c]omplaint on all its causes of action beyond five . . . years of the date of discovery of injury, i.e., AEMV did not file its initial complaint concerning the communications lines under the [p]roperty-on which its alleged injuries are based-until . . . August 9, 2019, more than five years after AT&T's August 7, 2014 e[-]mails."
The trial court found that "AEMV ha[d] not met its burden of making a rebuttal prima facie showing of evidence showing a triable issue of material fact as to whether [AEMV]'s four causes of action are barred by their respective statute of limitations." The court explained that it was "simply not persuaded that a reasonable factfinder could find that AT&T concealed any facts regarding the existence of communications lines on the [s]ubject [p]roperty because it disclosed the general existence of such lines on August 7, 2014."
G. Judgment; appeal
Judgment was subsequently entered in favor of AT&T, and AEMV timely appealed.
DISCUSSION
AEMV challenges the grant of summary judgment, contending that the inverse condemnation cause of action was not time-barred.
AEMV does not challenge the trial court's ruling that the nuisance and trespass causes of action, which have a three-year statute of limitations (Code Civ. Proc., § 338, subd. (b)), were time-barred.
I. Relevant Legal Principles
A. Summary judgment and standard of review
Summary judgment is properly granted where "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment bears the burden of showing that at least one element of a cause of action "cannot be established, or that there is a complete defense to the cause of action." (Id., § 437c, subd. (p)(2).) "The expiration of the applicable statute of limitations is one such complete defense. [Citations.]" (Genisman v. Carley (2018) 29 Cal.App.5th 45, 49 (Genisman).)
"A defendant moving for summary judgment based on the affirmative defense of the statute of limitations carries its burden by presenting evidence establishing that the plaintiff's claim is time-barred. [Citation.]" (Genisman, supra, 29 Cal.App.5th at p. 49.) If the defendant meets this initial burden, the burden shifts to the plaintiff "to show that a triable issue of one or more material facts exists as to" the defense. (Code Civ. Proc., § 437c, subd. (p)(2).) "That is, the plaintiff must submit evidence that would allow a 'reasonable trier of fact [to] find in plaintiff['s] favor on the statute of limitations issue.' [Citations.] 'If defendant[] presented evidence establishing the defense and plaintiff[] did not effectively dispute any of the relevant facts, summary judgment was properly granted. [Citation.]' [Citation.]" (Genisman, supra, at p. 49.)
We review the trial court's order granting summary judgment de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in that party's favor. (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 39.)
B. Statute of limitations
The statute of limitations for an inverse condemnation claim based on an alleged taking of a property is five years. (Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 775; Patrick Media Group, Inc. v. California Coastal Com. (1992) 9 Cal.App.4th 592, 607.)
"Critical to applying a statute of limitations is determining the point when the limitations period begins to run. Generally, a plaintiff must file suit within a designated period after the cause of action accrues. [Citation.] A cause of action accrues 'when [it] is complete with all of its elements'-those elements being wrongdoing, harm, and causation. [Citation.]" (Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal.4th 788, 797 (Pooshs).)
"The most important exception to that general rule regarding accrual of a cause of action is the 'discovery rule,' under which accrual is postponed until the plaintiff 'discovers, or has reason to discover, the cause of action.' [Citation.] Discovery of the cause of action occurs when the plaintiff 'has reason . . . to suspect a factual basis' for the action. [Citations.]" (Pooshs, supra, 51 Cal.4th at p. 797.) A plaintiff "has reason to suspect when he has '"'"notice or information of circumstances to put a reasonable person on inquiry"'"' [citation] ...." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 398 (Norgart).)
The California Supreme Court has rejected "a hypertechnical approach to the application of the discovery rule." (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) Thus, "[r]ather than examining whether the plaintiff[] suspect[s] facts supporting each specific legal element of a particular cause of action, [courts] look to whether the plaintiff[] ha[s] reason to at least suspect that a type of wrongdoing has injured them." (Ibid.) II. The Trial Court Properly Granted AT&T's Motion for Summary Judgment
Here, the undisputed facts establish that AEMV's inverse condemnation cause of action accrued, at the latest, on August 7, 2014.
AT&T asserts that the inverse condemnation cause of action actually accrued decades earlier, in 1962, when Culver City vacated the property and it became private land. Although AEMV did not purchase the property until 2013, "'[i]n an action involving tortious injury to property, the injury is considered to be to the property itself rather than to the property owner, and thus the running of the statute of limitations against a claim bars the owner and all subsequent owners of the property. [Citations.] In other words, the statute of limitations does not commence to run anew every time the ownership of the property changes hands.' [Citation.]" (Ventura29 LLC v. City of San Buenaventura (2023) 87 Cal.App.5th 1028, 1045; see also City of Los Angeles v. Ricards (1973) 10 Cal.3d 385, 389 [the right to recover in inverse condemnation "remains in the person who owned the property at the time of the taking or damaging, regardless of whether the property is subsequently transferred to another person"].) Because we conclude, like the trial court, that no dispute of material fact exists as to the claim accruing at least by August 7, 2014, and thus being time-barred, we need not address whether the undisputed facts establish an even earlier date of accrual.
AEMV had reason to suspect a factual basis for its action when Ghavami, acting on behalf of AEMV's principal, received the August 7, 2014, e-mail from AT&T's representative concerning the "property and an existing 'telegraphic and telephone lines' easement." That e-mail included a forwarded message from another AT&T employee that specifically identified AT&T's "facilities on the southeast corner of Washington and La Cienega as one 8-duct conduit run and one 14-duct conduit run." The assessor's map attached to the e-mail outlined the boundaries of AT&T's easement on the property in red and referenced Ordinance No. CS-443, which expressly reserved easements for telephone and telegraph lines in 1962.
Thus, it is undisputed that, by August 7, 2014, AEMV knew that AT&T claimed an easement on the property for telegraphic and telephone lines and had two conduits in place. By that date, AEMV suspected or reasonably should have suspected that its potential use of the property was not unfettered and that the cause of this harm was AT&T's interests in and own use of the property. In other words, receipt of the e-mail gave AEMV "'"'"notice or information of circumstances to put a reasonable person on inquiry"'"' [citation] ...." (Norgart, supra, 21 Cal.4th at p. 398.)
The August 7, 2014, e-mail triggered the running of the five-year statute of limitations, which expired before AEMV filed its lawsuit on August 9, 2019. It follows that summary judgment was properly granted. (See Arrow Highway Steel, Inc. v. Dubin (2020) 56 Cal.App.5th 876, 883 ["summary judgment is appropriate where the undisputed facts establish that a claim is barred by the statute of limitations"].)
Resisting this conclusion, AEMV argues that, under the discovery rule, its inverse condemnation cause of action did not accrue until April 1, 2015, when workers dug into the conduits on the property. At that point, AEMV discovered the specific location of the conduits and that AT&T's "actual use of the easement resulted in [AEMV]'s inability to use its property as it wanted." AEMV contends that, prior to April 1, 2015, AT&T never informed it of the precise location of the conduits, or that it had physical structures under the property, which would interfere with AEMV's intended use.
We are unpersuaded.
The premise of AEMV's contention that it only "discovered the injury" on April 1, 2015, conflicts with the allegations in its complaints, including the operative second amended complaint, that "[i]n or around August of 2014, [AEMV] discovered that two underground telecommunications lines were embedded underground to the [p]roperty . . . and intersect[ed] with [AEMV]'s rights in fee simple to the [p]roperty."
"In summary judgment . . . proceedings, '[a]dmissions of material facts made in an opposing party's pleadings are binding on that party as "judicial admissions." They are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted, by the party whose pleadings are used against him or her.' [Citations.]" (St. Paul Mercury Ins. Co. v. Frontier Pacific Ins. Co. (2003) 111 Cal.App.4th 1234, 1248 (St. Paul Mercury Ins. Co.); see also Uhrich v. State Farm Fire &Casualty Co. (2003) 109 Cal.App.4th 598, 613 [a judicial admission "estops the maker"].) The pleader "'cannot offer contrary evidence unless permitted to amend, and a judgment may rest in whole or in part upon the admission without proof of the fact.' [Citation.]" (Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1272.)
Notably, AEMV has not challenged the trial court's August 20, 2021, order denying leave to amend "the date of discovery”-that is, to allege in the second amended complaint that AEMV had discovered AT&T's underground telecommunications lines “[o]n or around April 1, 2015.” As a result, AEMV has forfeited any argument that the court erred in that respect. (See Golden Door Properties, LLC v. Superior Court of San Diego County (2020) 52 Cal.App.5th 837, 890 [“issues not addressed as error in a party's opening brief with legal analysis and citation to authority are forfeited”].)
AEMV is therefore bound by its judicial admission that it discovered AT&T's underground telecommunications lines on the property in August 2014, which interfered with AEMV's rights to the property. (See St. Paul Mercury Ins. Co., supra, at p. 1248.)
Judicial admission aside, AEMV's argument misapplies the discovery rule. For the statute of limitations period to commence, a plaintiff "need not know the 'specific "facts" necessary to establish' the cause of action; rather, he may seek to learn such facts through the 'process contemplated by pretrial discovery'; but, within the applicable limitations period, he must indeed seek to learn the facts necessary to bring the cause of action in the first place-he 'cannot wait for' them 'to find' him and 'sit on' his 'rights'; he 'must go find' them himself if he can and 'file suit' if he does [citation]." (Norgart, supra, 21 Cal.4th at p. 398, italics added.) Nor does not knowing the full extent of damages delay the accrual of a cause of action. (See Pooshs, supra, 51 Cal.4th at p. 797 ["Must the plaintiff sue even if doing so will require the jury to speculate regarding prospective damages? Or can the plaintiff delay suit until a more accurate assessment of damages becomes possible? Generally, we have answered those questions in favor of prompt litigation, even when the extent of damages remains speculative."].)
Thus, although AEMV may not have known the precise location of AT&T's conduits within the boundaries of the property or the specific ways in which its desired use of the property might be impeded, the August 7, 2014, e-mail provided sufficient notice of an appreciable harm, as well as its source, for the claim to accrue. (See Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 648 ["the limitations period begins to run when the circumstances are sufficient to raise a suspicion of wrongdoing"].) If AEMV did not believe it had sufficient facts to establish its cause of action, it bore the responsibility to seek out those facts before the limitations period expired. (See Norgart, supra, 21 Cal.4th at p. 398.) Indeed, crediting AEMV's assertion that it did discover the specific location of the conduits on April 1, 2015, over four years remained within the limitations period to file a timely inverse condemnation action.
DISPOSITION
The judgment is affirmed. AT&T is entitled to its costs on appeal.
We concur:, J. CHAVEZ, J. HOFFSTADT